Grossi, J.c.c., Temporarily Assigned.
Plaintiff sues for an annulment, alleging defendant's prior subsisting marriage. This is a motion for, among other things, pendente lite alimony.
Defendant was married to his first wife on March 11, 1961. An Alabama divorce decree was purportedly entered on June 9, 1965. On August 15, 1965 the parties here were married. Thereafter, it was discovered that no divorce decree was entered in the Alabama court.
Defendant contends that his marriage to the plaintiff is void ab initio , and therefore she is not entitled to alimony, either permanent or pendente lite. He also contends that any interpretation of N.J.S.A. 2A:34-23 which would allow permanent or pendente lite alimony would amount to a deprivation of property without due process of law, in violation of the Fourteenth Amendment of the Federal Constitution and Art. I, par. 1 of the New Jersey Constitution.
This court's authority to grant pendente lite alimony would seem clear from a reading of N.J.S.A. 2A:34-23. The statute provides in pertinent part:
Pending any matrimonial action brought in this State or elsewhere * * * the court may make such order as to the alimony or maintenance of the parties * * * as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, and require reasonable security for the due observance of such orders.
Before the 1971 amendments to the Divorce Law, N.J.S.A. 2A:34-23 allowed "such order as to the alimony or maintenance of the wife * * *." Defendant argues that plaintiff is not his wife since no valid marriage ever took place, and urges that the court should continue to interpret the word "parties" in N.J.S.A. 2A:34-23 as requiring a lawful spouse. The argument relies on the comment of the divorce Law Study Commission in its Final Report to the Governor and the Legislature , dated May 11, 1970. The Commission states (at 93) that "Section 2A:34-23 is retained in its present form with the exception of a change of the word 'wife' to 'parties' so that alimony may be awarded to a husband as well as a wife * * *."
That reading of the statutory amendments regarding alimony is much too narrow. The 1971 amendments to the Divorce Law include an addition to N.J.S.A. 2A:34-23 which in pertinent part provides: "In all actions brought for divorce, divorce from bed and board, or nullity the court may award alimony to either party , and in so doing shall consider the actual need and ability to pay of the parties and the duration of the marriage." (Emphasis supplied)
The Divorce Law Study Commission gave its reason for this amendment in its Final Report to the Governor and the Legislature. It states:
The proposed amendment to section 2A:34-23 would permit alimony to be awarded in nullity actions as well as in divorce and divorce from bed and board actions. Unfortunately, only a minority of states at present permit alimony to be awarded in annulment cases. This is due to historical accident rather than because of deliberate statutory design. There is no sound reason why a wife who is the victim of fraud or who unwittingly enters into a bigamous marriage should be deprived of alimony. The court should have discretion to award alimony in appropriate cases where the relief sought is an annulment. [at 93-94]
The statute, N.J.S.A. 2A:34-23, "makes no distinction between a voidable and a void marriage. The language of the provision clearly ...